- (1.) THESE seven appeals are directed against the judgment and order of the Additional Sessions Judge No. 1, Jodhpur, dated 23rd of December, 1965. In Sessions Case No. 16 of 1965/31 of 1965 the Additional Sessions Judge tried the seven appellants for offences under Sections 376, 342 and 323, Indian Penal Code. After trial, he found them all guilty and convicted them and awarded sentences as detailed below : - - Gopi Shanker u/s 376, P.O. 5 years R. I. and fine of Rs. 500/ -; in default, one year's R.I. u/ss 342 | 6 months R.I. &fine; of Rs. 50/ -; in default, two month R. I. on each count. 323 | r/w 34 | Mahesh Chand u/s 376 5 years R.I. &fine; of Rs. 100/ -; in default, six months R.I. Shiv Kumar | Dhan Singh | Sher Singh | Tulsi Ram | u/ss 342 | 6 months R I. &fine; of R. 50/ -; in default, two months R. I. on each count. Ram Chander | 323 | r/w 34 | | All the sentences to ran concurrently.
(2.) EACH of the seven convicts has filed a separate appeal challenging his convictions and sentences and these seven appeals are being disposed of together. The facts on which the prosecution is founded may be briefly stated as follows: - - Mst Draupdi - -the prosecutrix PW/1 was married with Arjun PW/2 in or about the year 1982 in Jodhpur. Mst. Draupdi's parents resided during the relevant period in a house in Mohalla Navchowki, Jodhpur, whereas, her husband resided at Mahamandir. Two months before the incident which occurred in the night between 3rd and 4th of June, 1965, and which has led to the present prosecution of the appellants, Mst. Draupdi gave birth to a child at her father's house and was residing with her parents upto the date of the occurrence. The prosecution case further is that on 3rd June, 1965, Arjun took Mst. Draupdi from her parents' house at about 5.30 P. M. and left for the market for purchasing some cloth for himself and for Mst. Draupdi. They left the child in the care of Mst. Draupdl's mother. They arrived at Sojati Gate. While Mst. Draupdi remained outside Arjun went into Prakash Silk Store. He, however, found great rush of customers in the Prakash Silk Store, and therefore, postponed the purchase of cloth and came out of the shop. At that time Gopal PW/5 is alleged to have met Arjun and Mst. Draupdi by chance. Gopal proposed to Arjun and Mst. Draupdi that they should visit the Olympic Cinema House to see a picture and Arjun and Mst. Draupdi agreed. All the three of them thereafter went to Olympic Cinema. After the show was over they again came to Sojati Gate. Ordinarily, Arjun and Mst. Draupdi could have availed of the direct route from Olympic Cinema to Navchowki Mohalla but at the suggestion of Gopal they adopted a route via Sojati Gate in order to provide further company to Gopal. When they arrived just outside Sojati Gate Gopal further suggested to Arjun and Mst. Draupdi to have tea at Agra Hotel. The suggestion having been accepted all the three entered the Agra Hotel at about 10.30 P. M. The prosecution case further is that in the Agra Hotel Hall there was a rush of customers and it was suggested to Gopal, Arjun and Mst. Draupdi (either by Gopi Shanker as stated in the first information report or by Mamma alias Maheshchand as put forward during the course of trial) that they should go up -stairs in the family cabin. Arjun, Gopal and Mst. Draupdi went to the family cabin and occupied some chairs near the family cabin. It may be pointed out incidentally at this stage that initially in the first information report it was stated that they went into the family cabin and stayed there. Ignoring this discrepancy the prosecution story further is that the prosecutrix, Gopal and Arjun waited for tea for ten to fifteen minutes and then Gopal went down -stairs to enquire and on returning reported that they would be having their tea very shortly. Even thereafter tea could not be served to them for quite a long time. They, therefore, got up to go down but were asked either by Gopi Shanker or Mahesh (here again the prosecution is not quite consistent) to wait for some time. Even thereafter no tea was served but Gopi Shanker and Mahesh arrived at the family cabin with bottles of wine and soda. They also had with them four empty glasses. Gopi Shanker and Mahesh stayed with them and offered drinks to Arjun and Gopal. After some initial hesitation they accepted the offer. According to the prosecution, each of the four persons, namely, Gopal, Arjun, Gopi Shanker and Mahesh took about one and one and a half glasses of wine. The prosecution case further is that Arjun and Gopal felt some intoxication and were then sent down. Mst. Draupdi, however, was not permitted to go down by Gopi Shanker, Gopi Shanker thereafter forcibly took off the salwar, kurta and bodice which Mst. Draupdi was putting on at the time and made her completely naked and then had forcible sexual intercourse with her without her consent. After the first act of forcible sexual intercourse Gopi Shanker had further drinks and had forcible sexual intercourse with her for the second time. He then called Mahesh. Mahesh also had forcible sexual intercourse with Mst. Draupdi. Then followed Shiv Kumar Suri, Dhansingh and Manak, who is alleged to be absconding, and Sher Singh, Tulsi and Ramchander. The prosecution case is that each one of them had forcible sexual intercourse with Mst. Draupdi against her will and without her consent. It may be stated at this stage that Gyanendra Kumar PW/4 has his house just adjacent to the premises of the Agra Hotel. He could hear the noise that was caused in the Hotel in connection with the commission of the alleged rape by the accused -appellants. For the first time he heard some noise in the Hotel and the cry of a woman at about 12 night. On enquiry he was informed either by Gopi Shanker that there was no woman there and that noise was caused because the servants had started taking their meals. He again heard noise after about an hour and further intervened and was told by Mahesh that the servants had been mono acting. The witness heard the noise a third time at about 3 A. M, He had also heard the sound of a woman, He again intervened and was offered the same explanation. He was, however, not satisfied with the explanation and gave a threat that he would inform the police. Upon this, Shiv Kumar and Mamma brought Mst. Draupdi in a naked condition from the side of the cabin. She was pushed by Gopi Shanker and was taken down in the hall, Gyanendra Kumar also heard some noise in the Hotel below. He thereupon went down and got out of his house and contacted Mangla Ram of the Sojati Gate Police Outpost. They came in front of the Hotel and Satya Naraina and some other persons also arrived there. When they were there in front of the hotel Mst. Draupdi was pushed down the staircase of the Agra Hotel in a naked condition and fell on the road in that condition. Gopal and Arjun were also similarly thrown down the staircase from the Agra Hotel. Reverting to the prosecution story, it may be stated that after Arjun and Gopal had drinks they were brought down from the second storey or the terrace whatever it may be called, to the hotel, they were taken to the kitchen and kept wrongfully confined there. Their hands had been tied with some cloth and their mouths were also gagged or closed. They remained in that condition till about 3 A. M. Then they were brought to the hotel room. Simultaneously Mst. Draupdi was also brought from the family cabin to the hall in a naked condition. Mst. Draupdi had been insisting for the supply of clothes to her but the accused did not care to supply her the clothes. When Gopal and Arjun saw Mst. Draupdi in that condition they got annoyed and they began abusing Gopi Shanker and the other accused. The employees of the hotel did not care to supply the clothes to Mst. Draupdi but on the other hand they started beating Arjun and Copal. Gopal made an attempt to make a telephonic call to the police but Gopi Shanker asked Mahesh to cut off the wire whereupon Mahesh cut off the wire and the telephone apparatus was disconnected. In the struggle in the hotel tables and chairs were upturned and were broken. Gopal and Arjun received injuries. After this beating Mst. Draupdi, Arjun and Gopal were thrown down the staircase as stated earlier. When the clothes of Mst. Draupdi were thrown from the window of the hotel, Mangla Ram picked them up and gave them to Mst. Draupdi. Mst. Draupdi put on the clothes. She also told Gopal, Arjun, Gyanendra Kumar. Mangla Ram and others what had happened with her in the hotel. Thereafter, the six persons, namely, Mst. Draupdi, Arjun, Gopal, constable Manglaram, Gyanendra Kumar and Satya Narain went to Police Station Udaimandir, and a verbal report was made there. Mahmud Khan PW/16 recorded the first information report which is Ex. P/1. It was got signed by all the six persons. It is stated that Mahmud Khan telephonically instructed the Officer incharge of the Police out post Sojati Gate to go to the hotel and arrest the miscreants. He also sent a few constables from the Police Station. He also telephonically called the Circle Inspector Parth Singh PW/17 who was the Station House Officer in charge of the Police Station, Udaimandir. After the arrival of Parath Singh investigation was taken over by him and he and Mahmud Khan with some constables left for the hotel. When they were just near the hotel they saw Mangla Ram arresting Gopi Shanker. Gopi Shanker after arrest by Mangla Ram was kept in a 'Baparda' condition and was eventually produced before Mahmud Khan. An arrest memo was prepared which is Ex. P -29 and he was directed to keep himself 'Baparda' Parth Singh thereafter inspected the site, prepared the site memo Ex. P/2 and the site plan Ex. P/4. He found tables and chairs up -turned in the hotel. He also saw pieces of glasses lying there. The wire of the telephone was lying cut off. On the roof near the family cabin he found broken pieces of glasses, signs of blood and drops of blood near the fourth cabin. He also found soda bottles, two bottles like that of beer, one small bottle in which there were some drops of wine and glasses. He also found two chairs lying near the family cabin. Two pieces of cloth like handkerchief were also noticed there and were suspected of being stained. He seized various articles including the telephone receiver and took them into his custody and prepared the recovery memo. The articles seized were sealed and they are Articles 1 to 16 and Article 20 -A and 21. Mst. Draupdi, Arjun and Gopal were thereafter taken to the Mahatma Gandhi Hospital and they were examined by Dr. Har Govind PW/9. Dr. Har Govind noticed the following injuries on the genitals of Mst. Draupdi : - - 'Mucoid vaginal discharge; labia majora slightly swollen; labia minora sub -mucus; echy -mosis irregularly spread on both sides; vaginal wall tender markedly; vagina lax; and entire vaginal wall showed area of sub mucus echy -mosis.' Dr. Har Govind also noticed the following eight injuries on her person : - - 1. Contusion 31/2' x 3' area over both the thighs medially upper 4th 2. Swelling with faint contusion on sacral area 4' in diameter. 3. Abrasion 11/2' x 3/4' on the left elbow medially. 4. Abrasions irregular in 1' x 1' area over right forearm upper i'. 5. Abrasion 1' x 1/2' with swelling above left eyebrow. 6. Abrasion 1' x 1/10' below supra sternal notch. 7. Tenderness over left mid chest anteriorly. 8. Swelling over left lower jaw mid part. Dr. Har Govind also examined Mst. Draupdi to ascertain her age and expressed the opinion that the girl was about seventeen years. From his examination of Mst. Draupdi he recorded an opinion that Mst. Draupdi had recent sexual intercourse, several times qualifying the words 'Several times' as more than one to two times. Dr. Har Govind also examined Gopal and noticed the following injuries : - - 1. Contusion 11/2' x 1/2' on left lower costal region posteriorly. 2. Contusion 3/4' x 3/4' below injury No. 1. 3. Tenderness over left upper chest anteriorly. Dr. Har Govind examined Arjun also and found the following Injuries on his person : - - 1. Abrasion 1' x 3/4' on the left wrist medially. 2. He was complaining of pain over front of chest upper part. 3. Contusion two 11/2' x 1' and 3/4' x 1/2' with abrasion over left arm lower 4th posteriorly. After the medical examination Mst. Draupdi, Arjun and Gopal went to Mst. Draupdi's Father's house and there Mst. Draupdi changed her clothes and the clothe which she had at the time of the incident, namely, salwar and kurta, were taken into custody by the police and were duly sealed. Clothes of Gopal and Arjun were also taken into custody. During investigation other accused, namely, Mamma alias Mahesh Chand, Shiv Kumar Suri, Dhan Singh, Sher Singh and Tulsi were arrested. Manak could not be arrested and is still at large. During Investigation the underwear of Gopi Shanker having been suspected of containing stains was recovered on information given by him. Similar recoveries were also effected including one payzama of Shiv Kumar Suri.
(3.) AFTER completing investigation the police submitted charge sheet against all the seven persons in the court of Additional Munsu Magistrate No. 2, Jodhpur City, who after enquiry, committed the accused to stand their trial before the court of Session. The casewas tried by the Additional Sessions Judge No. 1, Jodhpur.;